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Nevada Public Agency Insurance Pool PUBLIC OFFICIALS LIABILITY WORKSHOP. Civil Rights Issues Aha! Oh No! Help Me!. Liability Concepts Overview. Why Liability is Imposed Types of Liability Affecting Public Officials Civil Rights Laws and Issues. Top Ten Reasons to Worry about Liability.

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Nevada public agency insurance pool public officials liability workshop

Nevada Public Agency Insurance PoolPUBLIC OFFICIALS LIABILITY WORKSHOP

Civil Rights Issues

Aha!

Oh No!

Help Me!


Liability concepts overview
Liability Concepts Overview

  • Why Liability is Imposed

  • Types of Liability Affecting Public Officials

  • Civil Rights Laws and Issues


Top ten reasons to worry about liability
Top Ten Reasons to Worry about Liability

  • 1. The same board might get reelected

  • 2. I might keep this job

  • 3. My spouse wants to protect our assets

  • 4. Attorneys might go on welfare

  • 5. Judges will get lonely

  • 6. Court clerk staff could get bored

  • 7. There’s no money in the budget to pay claims

  • 8. There’s no insurance to cover the risk

  • 9. No one else worries about it, so I have to

  • 10. I might get sued


Legal rights
Legal Rights

  • Security of Person

  • Security of Property

  • Security of Reputation

  • Services of Family

  • Right of Privacy

  • Freedom of Speech; Right to Vote

  • To be Free from Malicious Interference


Legal duties
Legal Duties

  • Refrain from Acts or Omissions that will Injure, Damage or Impair the Rights of Another

  • Respect for Other’s Rights

  • Provide a Safe Place and Take Care in Business Operations


Civil remedies
Civil Remedies

  • If a right has been invaded, a remedy exists

  • If a duty has been violated, others may sue

  • Resolution is declaratory, injunctive or money damages


Contract actions
Contract Actions

  • Contract Litigation

    • To enforce contract

    • To enjoin from action

    • To void contract in whole or in part

    • To rescind the contract

    • To collect liquidated damages for breach


Liability arising from fraud error mistake etc
Liability Arising from Fraud, Error, Mistake, etc.

  • Equitable Actions include:

    • Injunctive relief (stopping one from taken certain actions)

    • Restitution (making whole)

    • Quasi-contract (creating a contract after the fact based upon intent)

    • Specific Performance (forcing the party to do what they agreed to do)


Miscellaneous actions and remedies
Miscellaneous Actions and Remedies

  • Bankruptcy

  • Garnishment

  • Receivership

  • Trusteeship


Actions arising from acts or omissions
Actions Arising from Acts or Omissions

  • Unintentional Torts

    • Negligent Acts

    • Negligent Omissions


Actions arising from acts or omissions1
Actions Arising from Acts or Omissions

  • Intentional Torts

    • Trespass

    • False Arrest

    • Assault

    • Battery

    • Libel

    • Slander

    • Invasion of Privacy

    • Others


Torts absolute or strict liability
Torts: Absolute or Strict Liability

  • Private nuisances

  • Industrial accidents (workers compensation)

  • Automobile accidents

  • Defective products/completed operations

  • Civil rights issues


Causes of action 42 usc section 1983
Causes of Action 42 USC Section 1983

  • The range of actionable items is limited only by the sensitivity of the collective conscience of the community in which the litigation is filed.


Public officials errors or omissions
Public Officials Errors or Omissions

  • Misfeasance: the improper performance of some lawful act

  • Malfeasance: doing of an act one ought not to do at all; “evil doing;” ill-conduct; positively unlawful’ wrongful act with no legal right to do it

  • Nonfeasance: omission of acts a person ought to do; non-performance of acts which one ought to do; omission of required duty; neglect of duty; failure to do an undertaking agreed to


Key section 1983 cases
Key Section 1983 Cases

  • Monell vs.. Dept of Social Services (1978)

    • Ruled that local governments were a “person” for suit

    • Eliminated absolute (sovereign) immunity under state laws


Key section 1983 cases1
Key Section 1983 Cases

  • Owen vs. City of Independence (1980)

    • Ruled that local governments were strictly liable for violation of Federal civil rights

    • Eliminated good faith qualified immunity to both official and entity


Key section 1983 cases2
Key Section 1983 Cases

  • City of Canton, OH vs. Harris (1989)

    • Established that deliberate indifference to training public employees constitutes a civil rights violation if public entity is shown to be grossly negligent or reckless such that misconduct is likely to occur

    • Failure to train constitutes a policy of deliberate indifference to protecting civil rights


Plaintiff s view of civil rights laws
Plaintiff’s View of Civil Rights Laws

  • Triumph of the rule of law

  • Humblest citizen gains impartial forum for redress against government

  • Legal system helps the powerless, oppressed and disgruntled

  • As legal system succeeds, the fabric of society is strengthened


Sources of liability for deliberate indifference
Sources of Liability for Deliberate Indifference

  • Poor or No Policies

  • Customs or Usage

  • Pattern and Practice

  • Failure to Train


Who can be sued
Who Can Be Sued?

  • Governmental Entity

  • Officials Acting In Their Official Capacity - Note that strict liability applies; no good faith defense

  • Officials and Employees Individual


Choosing alternative courses of action
Choosing Alternative Courses of Action

  • In any situation where people must choose between alternative courses of action, the majority will choose the worst possible course.


Acts of policy makers
Acts of Policy Makers

  • Official Acts of Policy Makers are Acts of the Public Entity for Purposes of 42 USC Section 1983


Policy makers defined

Policy makers:

Govern conduct

Decide goals in their area and means to achieve them

Act in place of the board in their area of responsibility

Have discretionary authority

Have decision making powers

Delegation:

Board must expressly or impliedly grant authority

Board retains ultimate power to control finances

Board retains ultimate power to curtail authority

Board acts through power of federal or state laws, local ordinances or its own official policies

Policy Makers Defined


Law enforcement policymakers
Law Enforcement Policymakers

  • Policy set by Chief of Police may be policy of city without board action

  • Sheriff, as Constitutional officer, sets policy, but close ties to county through finances makes county liable for acts of Sheriff


Teamwork
Teamwork

  • Teamwork is essential. It allows you to blame someone else.


Personal liability of administrators
Personal Liability of Administrators

  • Knew or should have known of pattern of gross abuse

  • A pattern of gross abuse means

    • Disregard of well established law

    • Failure to supervise or training that is so deficient as to constitute gross negligence or deliberate indifference to civil rights

  • Participated in or failed to stop a pattern of gross abuse


Suits can seek relief
Suits Can Seek Relief

  • Monetary damages

  • Declaratory relief

  • Injunctive relief


Sources of liability
Sources of Liability

  • Federal laws

  • State laws

  • Local Ordinances

  • Regulations

  • Policy statements

  • Board decision


Sources of liability1
Sources of Liability

  • Where Customs or usage are so

    • Permanent

    • Well settled

    • Widespread

    • Well known

  • That they should have an effect on policy


Custom or usage
Custom or Usage

  • Persistent and widespread practices by employees that may be attributed to a municipality when the duration and frequency of the practices warrant a finding of either actual or constructive knowledge by the governing body.

  • To avoid liability, get your MBWA degree: Management By Wandering Around


Affirmative duty
Affirmative Duty

  • Police officers duty to enforce the law

  • Duty includes obligation to prevent other officers from committing illegal acts

  • Failure to prevent fellow officer from violating constitutional rights of citizens makes both officers jointly liable to the victim

  • THE SAME RULES APPLY TO ALL OTHER PUBLIC OFFICIALS


Individual immunities

ABSOLUTE IMMUNITYapplies to local officials acting in a legislative (not administrative) capacity

defeats lawsuit at the outset

QUALIFIED IMMUNITYapplies to lawyers acting for or giving advice to officials and to local officials acting in an administrative capacity

Depends upon the circumstances and motivations of officials

Individual Immunities


Types of constitutional claims

1st Amendment 26%

Freedom of speech

Freedom of assembly

Freedom of the press

14th Amendment 45%

Due process of law

Types of Constitutional Claims


Target defendants
Target Defendants

  • Chief Executives - 18%

  • Department Heads - 25%

  • Managers - 12%

  • Line Employees - 45%


Liability prevention
Liability Prevention

  • Put policies in writing

  • Make sure minutes reflect exactly what was said and done at meetings

  • Have legal counsel review all ordinances and administrative policies

  • Define public officials’ duties so they know their bounds

  • Be familiar with and follow state and local due process and negligence standards


Fair employment practices
Fair Employment Practices

  • Be gender, age, race and disability neutral in entire hiring process

  • Develop and distribute employment policies and job descriptions

  • Conduct regular performance evaluations for all employees and document results

  • Insist all supervisory staff follow established procedures for performance management and discipline


Use common sense
Use Common Sense

  • Earn your MBWA regularly because if you don’t know, the courts will tell you that you should have known


Open meeting law

OPEN MEETING LAW

Nevada Open Meeting Law Manual

NRS Chapter 241


1 does meeting law apply
1. Does Meeting Law Apply?

  • Quorum

  • Decision or Action

  • No Private Polling or Deliberation

  • Lunch Together?


2 agenda and notice
2. Agenda and Notice

  • Clear Explanations

  • Action Items Clearly Marked

  • Copies to Subject Parties

  • Must Post on Web site if you have one


3 closed session
3. Closed Session

  • CAUTION !!!

  • Personnel or Labor Relations

  • No Attorney-Client Privilege Except to Discuss Pending or Threatened Litigation

  • Decisions Void


4 minutes recordings
4. Minutes & Recordings

  • Capture the Essence of Discussion and Final Decisions Made

  • Must be Posted on Web Site if you have one


5 negative consequences
5. Negative Consequences

  • Fines

  • Sanctions

  • Removal


Ethics in government

Ethics in Government

Rules to Live By as a Nevada Public Official


To whom does the code of ethical standards apply
To Whom does the Code of Ethical Standards Apply?

  • Public Officers Elected or Appointed to a position created by

    • Constitution

    • State Law

    • Ordinance

  • And which position involves exercise of public power, trust or duty

  • Includes public employees


Who is not a public officer
Who is NOT a Public Officer?

  • Judges

  • Justices

  • Court System

  • Commissioner of Deeds

  • Advisory Committees


Voting by public officers or employees
Voting by Public Officers or Employees

  • Shall NOT Vote, abstain or act on any matter in which he or she has accepted

    • gift or loan

    • pecuniary interest

    • commitment to others


Independent judgment

Judgment NOT affected if the benefit or detriment accruing to him/her is no greater than to any other member of the group, business, profession or occupation - MAY VOTE AFTER DISCLOSURE

IF Judgment WOULD BE affected, the individual shall NOT vote or advocate passage or failure, but may participate in consideration of the matter IF FULL DISCLOSURE IS MADE

Independent Judgment


Ethics simplified
Ethics Simplified to him/her is no greater than to any other member of the group, business, profession or occupation - MAY VOTE AFTER DISCLOSURE

  • Behave appropriately

  • Authority to act comes from official board action

  • Personal goals are subordinate to board’s goals

  • Act collectively, not individually


The leadership test

The Leadership Test to him/her is no greater than to any other member of the group, business, profession or occupation - MAY VOTE AFTER DISCLOSURE

Am I Doing the Right Thing

at the Right Time

the Right Way

and for the Right Reason?


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